The Health 202: The clock is ticking on stricter ‘public charge’ rules for immigrants

If an immigrant has enrolled in Medicaid or accepted food stamps, it could soon be harder for them to stay in the United States permanently under a new regulation the Trump administration will formally propose today.

In a strange reversal from the way new regulations are usually put forward, the Department of Homeland Security released a draft of the rule a few weeks ago but hadn’t yet posted it in the federal register. When that happens today, it will kick off a 60-day public comment period where you can bet doctors and other health advocates will be pushing for DHS to back away from the changes the agency is seeking.

“Sweeping in its effect, the rule discounts the contribution of working families,” says a letter obtained by The Health 202 that was signed by more than 1,500 groups including the American Academy of Pediatrics, the ACLU and the National Immigration Law Center. “It would chill access to critical programs that help taxpaying immigrants and their families access health care, food and other essential needs.”

The changes these advocates are protesting have to do with the “public charge” determination made by immigration officials when someone from another country applies for a green card allowing them to live and work in the United STates on a permanent basis. If officials determine the applicant is likely to be heavily dependent on government assistance — thus, a “public charge” — they could now be less likely to greenlight the application.

The way things stand right now, immigration officials consider whether an applicant received federal, state and local welfare assistance in making a public charge determination. But under the proposed rule, whether an immigrant enrolled in Medicaid, collected food stamps or participated in public-housing programs would also become factors for the first time — and they’d be weighted heavily in the determination of whether to award legal status.

And that could discourage legal immigrants from availing themselves of government help for which they’re eligible, for fear it could jeopardize their prospects of staying in the United States for the long term.

“This public charge proposal is presenting immigrant families with an impossible and truly unfair dilemma, which is to keep their families healthy and utilize bread-and-butter services or risk being separated and forego vital services,” Julie Linton, a pediatrician practicing in North Carolina who co-chairs the American Academy of Pediatrics Immigrant Health Special Interest Group, told me.

Linton and other doctors are most concerned about immigrant families living in the United States in which one or both parents are seeking permanent residency. Of the approximately 1 million immigrants who are annually granted green cards, more than half live in the United States on temporary visas. These legally present individuals and families are eligible for public programs in most states, but could become afraid to participate in them under the new rules.

Protesters rally outside a courthouse in San Francisco in April 2017. (AP Photo/Haven Daley, File)

Various drafts of the new rule had been circulating for months, and The Health 202 wrote about the issue back in Apriland again in August. There was speculation that it would go even further, including a review of Obamacare insurance subsidies and whether an individual’s family members used government benefits.

The proposal we’ll see today doesn’t include those elements. Nor does it give a definitive answer on whether enrollment in the Children’s Health Insurance Program could jeopardize green-card applications for kids, instead soliciting specific feedback on that question. So in a few ways, the proposed rule is somewhat less stringent than what the administration was contemplating, perhaps reflecting the strong pushback from health providers.

(We should also note that immigrants who already have green cards who are seeking citizenship aren’t subject to a public charge determination, nor are refugees or those granted asylum.)

But the proposed rule does contain something else advocates dislike — it suggests factoring in income of applicants for the first time. Earning less than 125 percent of federal poverty level ($25,975 for a family of three) would count against applicants, while earning more than 250 percent of the federal poverty level ($51,950 for a family of three) would give them a boost.

“This proposed rule change would mark a fundamental change from our nation’s historic commitment to welcoming immigrants,” the letter from AAP and others says. “It would radically reshape our legal immigration system, putting the wealthy at the front of the line, ahead of hard-working families who have waited years to reunite.”

Ask administration officials for their interpretation, however, and they speak of encouraging self-sufficiency among immigrants and preserving public funds — arguments similar to those made by Seema Verma, administrator of the Centers for Medicare and Medicaid Services, for the new Medicaid requirements her agency is allowing.

DHS Secretary Kirstjen Nielsen said long-standing federal law requires would-be immigrants to “show they can support themselves financially,” in an announcement of the proposed rule a few weeks ago.

Hans von Spakovsky, a senior fellow with the conservative Heritage Foundation, told Politico that “we can be choosy about who we allow into the country.”